Page:Federal Reporter, 1st Series, Volume 1.djvu/296

as 8 FBBBBAL EEPOKTEB. �McCraby, J. This is a petition iiled by J. Weil & Bro. praying an order against the assignee of John Walrup, bank- rupt, directing him to return to petitioners certain dry goods sold and delivered by them to the bankrupt prior to the com- mencement of the bankruptcy proceedings, This order is asked upon the ground that the goods in question were ob- tained by the bankrupt from the petitioners by means of false representations as to his financial condition. There is some doubt upon the question whether the proof shows that the bankrupt obtained the goods, not intending to pay for them, and this, according to the ruling of the supreme court in Donaldson, Assignee, t. Farwell, 98 U. S. 631, must appear. It is not, however, necessary to go into the proof upon that question, for the case may well be determined upon another point. It is very clear that the vendor, who has been induced by fraudulent and false representations to part with the goods, must, upon discovering the fraud, promptiy disaffirm the contract in order to be entitled to a return of the prop- erty. In this case it appears, from the report of the register, that the petitioners not only did not comply with this require- ment of the law, but that they failed to take back the. goods ■when the bankrupt offered to return them, The register, in his report, says : �"The faots appear to be that on receiving notice from the debtor of the proposed meeting of creditors for the purpose of securing an extension, as heretofore stated, one of the mem- bers of petitioners' firm called in person upon the debtor, who then made a proposai to return the goods, they then being, as now, in unbroken packages; and after some parley between the parties no final action was taken." �The character of this parley we may gather from/the further facts stated by the register, that "there is some evidence tend- ing to show that at the time of this interview the petitioners f.ndeavored to secure from the debtor some arrangement by whieh their claim would be protected," etc. I have no doubt that an attempt to secure the debt, or to obtain a pref- erence, after knowledge of the fraud, would amount to an affirmanee of the sale, even if not accompanied by a refusai ��� �